England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Vincent Fraser QC (deputy judge)
CO 1118 2010

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/10/2011

Sir Stephen Sedley:

1. This is an application for judicial review. It has been retained in this court under Part 52. 15(4) CPR by direction of Sir Richard Buxton on an application for permission to appeal following the refusal of permission to seek judicial review in the Administrative Court.
2. The application raises a significant issue about the treatment of vulnerable asylum-seekers and their children following certification of their claim as clearly unfounded. Since, like all such cases, it is fact-specific, it is to the facts that it is first necessary to turn.

History

3. The claimant and her husband, who are both Iranian nationals, left Iran in July 2009. They stayed for about 45 days in Turkey before travelling to Latvia, where they sought asylum. Latvia is a member state of the EU; Turkey is not.
4. From Latvia the couple travelled to the United Kingdom where, on 22 September 2009, they both claimed asylum, essentially on the ground of their conversion to Christianity and its likely consequences if they were returned to Iran's Islamic theocracy. It was ascertained by fingerprint that they had come through Latvia. The Latvian authorities were accordingly asked, pursuant to the EU's Dublin II regulation (2003/34/EC), to accept responsibility for processing the asylum claims, and on 5 October 2009 they agreed to do so.
5. The following day the Home Secretary certified, pursuant to paragraphs 4 and 5 of Sch.3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, that the conditions were met for removal to Latvia without prior examination of their asylum claims in this country. There is no dispute that this was correct, subject to what follows.
6. Through solicitors, the claimant and her husband had meanwhile submitted to the Home Office that removal to Latvia would violate their human rights. In response to this submission, the Home Secretary by letter of 14 October 2009 certified both human rights claims as "clearly unfounded", applying the criterion contained in paragraph 5(4) of Sch.3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. The consequence of such certification is that no in-country appeal may be brought.
7. On 6 May 2010 the claimant's husband was removed to Latvia. By then, however, she was pregnant, and their daughter was born here, prematurely, on 16 August. Her human rights claim accordingly, and importantly, now includes the wellbeing of the child. A considerable body of specialist and expert evidence, to which I will come, is relied on in support of this dual claim. For the present it is sufficient to record that the claimant was first seen by a psychotherapist on 12 January 2010. Two days later removal directions were set for 27 January.

Procedural history

8. It seems from the records that a first application for judicial review was filed with the purpose and the effect of securing the cancellation of removal directions which had been set for 20 October 2009. Following this, fresh directions were set for 27 January 2010.
9. On 26 January, the present judicial review proceedings were initiated by the claimant, acting in person but probably with some professional help, seeking to quash the new removal directions. Removal was stayed (we are not told whether voluntarily or by order), and in due course full grounds settled by counsel were filed, contending that the certification of the asylum claim should be quashed and that the claim should be considered substantively without removal to Latvia. The grounds also addressed the issue of detention pending removal.
10. On 25 February the Home Office wrote to the claimant and her husband seeking to answer in detail their concerns about healthcare in Latvia. It is sufficient for present purposes to record that Shivani Jegarajah, who has argued the claimant's case before us with skill and realism, has accepted that the combined effect of the "whitelisting" of Latvia in paragraph 2 of Sch 3 to the 2004 Act and the Minimum Standards Directive (2003/9/EC) is to create at least a presumption in the Home Secretary's favour which it would require evidence to displace. The Directive, by art. 15, requires all member states to provide "necessary" healthcare, and by art. 18 requires them to make the best interests of children a primary consideration. No evidence has been produced suggesting that Latvia would fall short of these obligations and Ms Jegarajah did not, in fact, seek to pursue in argument the "foreign" case that had originally been advanced on behalf of the claimant.
11. On 22 March 2010, having read both the claim and the defendant's summary grounds, Bean J refused to allow the application to proceed saying:

"… any asylum claim by these claimants is to be made in Latvia. There is no reason, medical or otherwise, why they should not be returned there…"

He classified the claim as wholly without merit.

12. On 29 March, now supported by the report of a medical practitioner, Dr Miriam Beeks, who had examined the claimant in custody, notice of renewal was given. It was met by fresh removal directions set for 14 April. On 9 April the claimant applied for an order blocking removal, supported by a full report from a consultant psychiatrist, Dr Nabavi. On 13 April Sales J refused to grant the order. The renewed application nevertheless went ahead on 14 October before Vincent Fraser QC, sitting as a deputy High Court judge. The removal order was not implemented.
13. By the time of the hearing, a fully reasoned letter, dated 13 October, had been sent by the UK Border Agency to Duncan Lewis, the solicitors now acting for the claimant. It referred in particular to s.55 of the Borders Act 2009 and the Agency's code of practice under it, a topic to which it will be necessary to return. On the claimant's side, further evidence was now before the court from a consultant psychiatrist, Dr Yagoub, and a consultant in gastroenterology, Dr Maxwell. Amended grounds were also filed on her behalf.
14. After full argument, Mr Fraser gave judgment ([2010] EWHC 3010 (Admin)) refusing permission to proceed with the claim. Having considered the "foreign" case in relation to medical provision in Latvia (which, as I have indicated, is no longer in issue), he turned to the "domestic" case and said this:

"16. Ms Arzane, on the evidence that is before me, will receive proper treatment and support in this country, there is nothing to suggest that anything will happen other than that, and during her removal and the receiving authorities in Latvia will be notified about her condition, which they are able to address and obliged to address and provide her with suitable treatment and support. In addition, of course, her husband is in Latvia. He has been there for some five months approximately and that is important not only because he is there and available to provide support, but also, as was observed by the Secretary of State, there is no indication by way of any further communication from him to suggest that there is in fact any problem in Latvia with the way he is treated or the way his wife and child can be expected to be treated.

17. I am satisfied that removal in this case is in accordance with the principles established in J, Tozlukaya and KH (Afghanistan). I have also considered very carefully the interests of Ms Arzane's daughter, which are, as was quite properly pointed out to me, a primary consideration in this matter.

18. The general interests of the daughter are addressed in the UK Border Agency's letter of 13^th October of this year, where essentially the point is made that, given the child's age, her best interests are to remain with her mother, which in turn will lead to her also joining her father and that must be in her best interests."

15. Application was made for permission to appeal to this court. On 16 December 2010, on consideration of the papers, Sir Richard Buxton granted permission, giving the direction mentioned in paragraph 1 above. He wrote:

"The issue here is whether there would be a substantial danger of a breach of the applicant's article 3 rights, and in consequence a breach of the child's article 8 part 3 rights by reason of the death or serious disability of her mother, if the applicant were removed to Latvia. At his paragraph 6 the judge accepted in terms the opinion of Dr Yagoub that the stress of forced removal would make it likely that the applicant would act on her suicidal ideation. The judge dismisses that danger on the basis of (i) assurances by the Secretary of State that the removal would take place under safe conditions; (ii) assumptions, set out in paragraphs 15-16 and 19 of the judgment, about the availability of medical care in Latvia. As to (i), first no detailed programme is offered by the Secretary of State, and second Dr Yagoub's concern was not limited to events on the journey. Possible stress-induced events in Latvia itself cannot be covered by any arrangements made by the Secretary of State. As to (ii) there appears to be no evidence at all as to the state of medical treatment in Latvia. The judge, at his paragraph 15, appears to have confused the question of whether Latvia is prepared to attempt to comply with its Convention obligations with the question of whether health provision in Latvia makes it possible or likely that the condition identified by Dr Yagoub will be properly treated and controlled.

The present issues

16. Ms Jegarajah now correctly focuses her case on the potential effect of removal on the art. 3 and art. 8 rights of the claimant and her daughter. These are essentially the right not to be subjected to inhuman or degrading treatment and the right to respect for family life. Both of these, she contends, will on the evidence be violated – the latter disproportionately so – by their removal to Latvia in the near or foreseeable future. In particular, she relies on evidence that there is a risk of suicide or self-harm which, if it were to eventuate, would impact disastrously on the child.
17. For the Home Secretary, Jason Beer QC submits that none of the evidence reaches the necessary threshold of a serious threat or real risk: at most it is evidence of legitimate concern, fully capable of being managed within the Border Agency's removal policy.
18. There is agreement that the effect of the House of Lords' decision in ZT (Kosovo) [2009] UKHL 6 is that the question whether the claim was properly certified is to be determined for itself by the court (It is now established by the decision of this court in MN (Tanzania) [2011] EWCA Civ 193 that a different approach is to be taken to r. 353 fresh claim cases).
19. There is also agreement that if it emerges that removal under Dublin II will result in a breach of Convention rights, the Directive itself by art. 3 permits – and may therefore require – the Home Secretary to retain the asylum claim for determination here.

The evidence

20. Mr Beer, rightly, has raised no objection to the introduction of up-to-date reports. Since the evidence is now voluminous, I will adopt the principal elements advanced and relied on by Ms Jegarajah. The reports fall broadly into two phases: those written before and those written after the submission by the defendant of the witness statement of Peter Wackenier, a HEO in the Border Agency, dated 9 May 2011.
21. In October 2010 (by when the claimant was no longer detained) Dr Yagoub, a consultant psychiatrist, reported that she was "severely depressed, though without psychotic symptoms", and that the stress of enforced removal to Latvia was "highly likely to result in further deterioration in [the claimant's] mental health". She was, he recorded, controlling suicidal ideation in the child's interests, but further stress would make it likely that she would act on it. Contemporaneously, a health visitor, Ann Infield, reported that the claimant was "just about coping" with her baby but that further deterioration in her mental state would adversely affect the child's development. There was also a consultant's report recording the occurrence of a pregnancy-related cardiac abnormality calling for further investigation and possibly treatment.
22. Mr Wackenier's statement sought to give reassurance that the claimant's medical needs and any related needs of her child would receive proper attention prior to and during the process of removal. His key paragraph says:

"4. As the Appellant is receiving treatment from a hospital, a risk assessment will be undertaken by the medical practitioner who is responsible for her care prior to her removal to Latvia. UKBA staff will seek to keep in contact with the medical staff in order to have an up-to-date account of what the Appellant's medications are, when and how they are to be taken and who is allowed to administer these medications. It is very common for a person who is due to be removed from the United Kingdom prior to removal to state that they have an alleged medical condition. The UKBA is well experienced in dealing with such removals and has set policy on how to handle these kinds of removal. The Appellant is receiving medical treatment and she will be dealt with in accordance with that policy. The UKBA will also ensure that a "Fit to fly" certificate is obtained prior to removal taking place. The "Fit to Fly" certificate is a medical report compiled by a doctor who will deem the subject as fit to fly prior to removal."

23. Mr Wackenier goes on to describe the process for providing medical escorts in such cases. What gives some cause for concern, however, is the muscular prose in which the passage I have quoted describes what appears to be a one-way process. This is a matter to which I shall return.
24. The Home Office has filed no expert evidence in response. The claimant, however, has responded to Mr Wackenier's evidence with a further bundle of reports, some antedating and some postdating that evidence.
25. The first, written in December 2010, comes from a project worker employed by the Children's Society specifically to provide welfare advice and support to children and families affected by immigration detention. The much-criticised practice of detaining families which necessitated such intervention had by then been terminated, but the report records that the claimant had thereafter been referred to the mother and baby unit of the Homerton Hospital because of concerns about the impact of her mental state on her ability to care for her child. The picture which emerges from a full case conference report of January 2011, however, is of a history of depressive symptoms capable of affecting the baby's wellbeing, but no current signs of self-harm or suicidal thoughts or of clinical depression, despite anxieties about the future. Continued monitoring was nevertheless indicated, and to this end a child protection plan was put in place. The claimant was formally discharged from hospital care on 9 February.
26. An update written on 26 April 2011 by the health visitor, Ann Infield, stressed that a child protection plan was a serious measure based on sufficient risk to warrant it. Ms Infield reported that the claimant's mental health was fragile and required medication and professional attention to prevent deterioration and to restore the bond with her child. A further update on 26 May expressed concern at the effect on the claimant's mental health of her fear of removal to Latvia, recommending that removal should not be pursued.
27. On 27 May 2011 the clinical psychologist treating the claimant, Dr Kerry Taylor, reported "grave concerns" about the mental health and safety of both mother and daughter were they to be removed. In her opinion the claimant's mental health was deteriorating rapidly because of fear for her and the child's physical safety outside the UK. The claimant, she wrote, "may be at risk of suicidal ideation if she is deported". Dr Taylor added that, at 9 months, the child was at a critical stage of development which could be jeopardised if the bond with the mother was disrupted.
28. Also in late May, her social worker reported a noticeable decline in the claimant's emotional presentation, possibly connected with an interruption of her medication as well as with the pending court hearing. She advised that if removal was proceeded with "immediate action will need to be put in place in order to safeguard [the child]. It is highly likely that this would include the need for [the child] to be placed into foster care whilst [the claimant] receives support for her mental health".
29. A report from the claimant's social worker, Peter Sykes, dated 31 May, recorded significant depression with little improvement over the last six months and a prospect of deterioration if removal is proceeded with. He anticipated that, albeit care would be taken for the mother's and child's wellbeing during the journey, removal itself was likely to "worsen [the claimant's] mental state". There was, he considered, "a reasonable possibility" that the claimant would attempt suicide notwithstanding her overriding concern for her child.
30. A report written on 1 June by Dr Pirzada, a consultant psychiatrist, put the claimant's case somewhat higher: "It does seem apparent that the suicidal risk would significantly heighten if she were to return to Latvia by force…although it is not clear whether thoughts of her baby daughter … would be protective". Dr Pirzada explained his concern that it was an inability to respond to the baby's needs – for instance, comforting her when she cried – that had led to the claimant's original admission to the mother and baby unit at the Homerton Hospital. But he went on to record that the claimant "was clear in that she would not act on these thoughts [viz that life was not worth living] due to her baby daughter." He also recorded that on examination about a fortnight before the report was written, despite depression and a sense of hopelessness about the upcoming court case, there were no suicidal ideation or intent and no thoughts of infanticide. Her main concern, in fact, was for the child.

Law and policy

31. Section 55 of the Borders Act 2009, replicating the provisions of s.11 of the Children Act 2004, provides:

"55 Duty regarding the welfare of children

(1) The Secretary of State must make arrangements for ensuring that –

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) any services proved by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

(2) The functions referred to in subsection (1) are –

(a) any function of the Secretary of State in relation to immigration, asylum or nationality;

(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;

(c) any general customs function of the Secretary of State;

(d) any customs function conferred on a designated customs official.

(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)"

32. The guidance referred to in subsection (3) currently takes the form of a publication entitled Every Child Matters, issued in November 2009. It seeks, in particular by promoting the sharing of information between agencies, to ensure that no child's welfare is overlooked while the child is within the protection of the Crown.
33. More material, however, is the policy referred to by Mr Wackenier. It is to be found in chapter 45 of the Border Agency's Operational Enforcement Manual, a chapter which by itself occupies 92 A4 pages. Mr Beer has taken us through enough of it to make it clear that the path it charts is a one-way street. It proceeds in three stages: assisted return, which seeks and depends upon the voluntary cooperation of the family concerned; required return, which invites the family to follow a prearranged departure process; and, if all else fails, ensured return, which is what its name suggests.
34. What is conspicuously lacking in the policy, at least so far as Mr Beer has been able to show us, is any slip-road for cases in which it has become apparent since the process was initiated that there is now a real risk of violating a Convention right if return is proceeded with. Such a case might typically be one in which there is an unexpected downturn in mental health bringing a real risk of suicide or of total breakdown, especially if there are children who may suffer by it.
35. Mr Beer readily, and in my judgment rightly, accepted on the Home Secretary's behalf that whether or not such provision can be found in the Operational Enforcement Manual, there has to be such provision if policy and practice are to comply with the law. It seems to me a matter of urgency that this should not only be acknowledged in these proceedings but should be rapidly and clearly introduced into the policy document itself. Without it there is a daily risk that s.55 will be breached.

This case

36. The question for us, irrespective of how the Home Secretary has answered it, and irrespective of the deficiency of the Border Agency's manual, is whether on the evidence before the court there is a real risk that removal of the claimant and her baby daughter to Latvia will result in a violation of the Convention rights of either or both of them.
37. The material before the court does not in my judgment reach this threshold. It describes a deeply troubled woman, concerned both for herself and for her child, who seeks asylum from the Iranian regime and is fearful of how Latvia will treat her, both as an asylum-seeker and as a patient in need of healthcare to enable her to care for her daughter and herself. But this court cannot act on those fears: they are taken to be answered by the international arrangements to which Latvia and the United Kingdom are parties. What it can and will act on is dependable evidence that the process of removal may well, either prospectively or eventually, cause such a deterioration in her mental health that removal will amount to inhuman or degrading treatment of her or her child, or that it will so damage their relationship as to amount to an unjustifiable, because disproportionate, denial of respect for their family life.
38. In considering these possibilities, especially the latter, two countervailing features must be borne in mind. One is that the claimant's husband is now in Latvia, so that removal will at least mean reunification. The other is that the purpose of removal in a Dublin II case is not, as it often is, to enforce the departure of someone with no right to be here. It is simply to ensure that an asylum claim is dealt with by the member state in which the first landfall was made. The often powerful public interest in consistent immigration control presently reaches no further than this.
39. Even so, in my judgment the present evidence does not reveal a real risk that proceeding with the removal of mother and daughter to Latvia in order that the asylum claim can be processed will provoke an act of self-harm or worse on the claimant's part, much less an act of harm to the child. It is this, and emphatically not Mr Wackenier's testimony that the UKBA "is well experienced" in dealing with cases in which "a person who is due to be removed from the United Kingdom [states] that they have an alleged medical condition", which matters.
40. For these reasons I consider that the human rights claim fell and still falls to be certified as clearly unfounded. It was and is, in other words, incapable of succeeding before an independent judicial tribunal.
41. This said, the law also plainly calls for a constant and careful watch on this family unit, and a sensitive and appropriate response if professional evidence shows deterioration in the prognosis. It does not permit the Border Agency to treat the claimant as if she were now on a one-way street from which there was no exit. Section 55 of the Act means what it says.

Conclusion

42. I would refuse this application for judicial review.

Black LJ:

43. I agree.

Hallett LJ:

44. I also agree.